Sectarian Prayer at Government Functions is Unconstitutional

JURIST Guest Columnist Katherine Lewis Parker, Legal Director at the American Civil Liberties Union of North Carolina, says that prayer at government functions that adheres to a particular religious dogma is unacceptable because it has a coercive impact on listeners and violates the Establishment Clause of the First Amendment...



At approximately 7:30PM on a December evening in 2007, the Forsyth County, North Carolina Board of Commissioners convened their regular monthly public board meeting. As had been the practice for years, the Chair of the Board called a religious leader from the community to the podium to give the opening invocation on behalf of the board. As Chair Gloria Whisenhunt called Pastor Robert Hutchens to the podium, she asked the members of the public in the audience to stand. Pastor Hutchens's prayer included references to "the Gospel of the Lord Jesus Christ," "the New Testament," "Your Son and His intercessory work on the Cross of Calvary," the "Virgin Birth," "how [Jesus] was born to die," "the Bible," and ended with the conclusion that "we do make this prayer in Your Son Jesus' name."

Two long-time Winston-Salem residents and retirees, Janet Joyner and Connie Blackmon, were in the audience that night. Joyner and Blackmon, who regularly attended board meetings to address and follow matters of local importance, previously and repeatedly objected to the county about the prevalence of sectarian references in the board's opening prayers. The overtly sectarian nature of Pastor Hutchens's prayer, like the other sectarian references to which they have been subjected at board meetings, made Joyner and Blackmon feel not only unwelcome and offended in a government meeting, but also "compelled" and "coerced" by their government into accepting Christianity. Despite the overtly sectarian and proselytizing prayer given by Pastor Hutchens at the December 17, 2007, meeting, the county invited him to return as an official prayer-giver on December 15, 2008, when he again offered a sectarian prayer.

In reaction to the board's continued and divisive practice, the American Civil Liberties Union of North Carolina Legal Foundation filed a lawsuit in March 2007 against Forsyth County on behalf of Joyner and Blackmon, arguing that the board's use of overtly sectarian prayer unconstitutionally advanced Christianity in violation of the Establishment Clause of the First Amendment to the US Constitution.

On July 29, 2011, in Joyner v. Forsyth County, the US Court of Appeals for the Fourth Circuit agreed with the ACLU's argument, concluding that Forsyth County's prayer policy and practice were unconstitutional. The Fourth Circuit's decision upheld a January 2010 ruling by Chief Judge James Beaty of the US District Court for the Middle District of North Carolina that the Forsyth County prayer policy violated the Establishment Clause. The Fourth Circuit also upheld Judge Beaty's order that the county must end or change its current prayer policy in favor of a nonsectarian prayer that does not endorse a single faith. On January 17, 2012, the US Supreme Court denied the county's petition for a writ of certiorari, rendering the Fourth Circuit's opinion final, and leading many local governments across North Carolina to revise their prayer policies in order to comply with the law.

Writing the 2-1 majority opinion in the Fourth Circuit, Judge J. Harvie Wilkinson III explained that the Fourth Circuit's decisions on legislative prayer, as well as decisions of the US Supreme Court, "approv[e] legislative prayer only when it is nonsectarian in both policy and practice." Judge Wilkinson went on to explain that "[s]ectarian prayers must not serve as the gateway to citizen participation in the affairs of local government. To have them do so runs afoul of the promise of public neutrality among faiths that resides at the heart of the First Amendment's religion clauses." The court further noted that

As our nation becomes more diverse, so also will our faiths. To plant sectarian prayers at the heart of local government is a prescription for religious discord. In churches, homes and private settings beyond number, citizens practice diverse faiths that lift and nurture both personal and civic life. But in their public pursuits, Americans respect the manifold beliefs of fellow citizens by abjuring sectarianism and embracing more inclusive themes.
As part of our staunch defense of individual religious liberty, the ACLU has long promoted the constitutional principle of government neutrality on matters of faith in order to avoid the "discord" that Judge Wilkinson warned about, and more importantly, to prevent citizens from being alienated or made to feel like second-class citizens by their government, as Joyner and Blackmon were. Thankfully, the Fourth Circuit in Joyner confirmed what most courts in the country have concluded — that sectarian legislative prayer is unconstitutional under the First Amendment to the US Constitution because it amounts to a government endorsement of one religion over others. The Supreme Court's denial of certiorari underscores the finality and consistency of this conclusion. Decisions like these keep secure a fundamental cornerstone of our democracy — that people of all belief systems have an equal seat at the table of government.

Katherine Lewis Parker is the Legal Director at the American Civil Liberties Union of North Carolina. She played an integral role in Joyner v. Forsyth County, filing the suit on behalf of the plaintiffs and serving as their attorney of record.

Suggested citation: Katherine Lewis Parker, Sectarian Prayer at Government Functions is Unconstitutional, JURIST - Hotline, Feb. 20, 2012, http://jurist.org/hotline/2012/02/katherine-parker-government-prayer.php.



This article was prepared for publication by Stephen Krug, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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